Much ink has been spilled over the grim odds facing patent owners in inter partes review (IPR) proceedings. For the October 2023-October 2024 period, institution rates by patent have reached 74% (up from 66% in 2021) and, once instituted, 84% of final written decisions result in some or all challenged claims being found unpatentable. But patent owners may improve significantly upon these odds.
To be sure, advising attorneys to present good arguments is a bit like reminding them to breathe, and yet, IPR briefs are often filled with spurious arguments. Aim to only present arguments that you would accept if you were the judge. Even then, have the most cynical attorney in your firm try to poke holes in it. If he or she can logically dismantle an argument within five minutes, your opponent and/or the judges will likely see those same flaws too.
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